François Boucher (Applicant)
v.
Public Service Commission Appeal Board
(Respondent)
Court of Appeal, Jackett C.J., Pratte and Le Dain
JJ.—Ottawa, April 14 and 24, 1978.
Judicial review Public Service — Appeal from assess
ment allowed fôr ground other than that appealed from —
Second assessment conducted to remedy deficiency ruled upon
— Combined assessments still not removing deficiency from
which applicant originally appealed — Second appeal ruled
issue considered and already ruled invalid — Federal Court
Act, R.S.C. 1970 (2nd Supp.), c. 10, s. 28 Public Service
Employment Act, R.S.C. 1970, c. P-32, s. 21.
Applicant requests that a Public Service Commission Appeal
Board decision be set aside. His first appeal, taken after he
failed a selection board assessment, was allowed along with the
appeals of other candidates based on different grounds, without
ever considering the ground on which he appealed. A second
assessment, conducted to remedy the deficiency considered by
this Appeal Board, was combined with the results of the first
assessment. This action did not remedy applicant's deficiency
but a second Appeal Board ruled that his contentions had been
considered and found invalid. Applicant seeks review of this
second appeal, contending that it deprives him of the right to
appeal under section 21 of the Public Service Employment Act.
Held, the appeal is allowed. While the procedure followed is
acceptable, the result must not be to deprive an unsuccessful
candidate of the right to appeal. Contrary to what was said in
this decision, the first Appeal Board did not disallow either
implicitly or otherwise—applicant's contention that his abilities
had not been properly assessed. The applicant, moreover, did
not abandon the idea, either tacitly or otherwise, of putting
forward his contentions. The Appeal Board, therefore, was
wrong to dismiss applicant's appeal without considering wheth
er his grounds for appeal were valid.
Brown v. Public Service Commission [1975] F.C. 345,
referred to.
APPLICATION for judicial review.
COUNSEL:
John D. Richard, Q.C., for applicant.
Paul Plourde for respondent.
SOLICITORS:
Gowling & Henderson, Ottawa, for applicant.
Deputy Attorney General of Canada for
respondent.
The following is the English version of the
reasons for decision delivered orally by
PRATTE J.: Applicant is requesting, pursuant to
section 28 of the Federal Court Act, that the
decision of a Board established by the Public
Service Commission be set aside. The Board dis
missed applicant's appeal made under section 21 of
the Public Service Employment Act.
In August 1976 a notice was published announc
ing that a competition would be held, in accord
ance with section 7(1)(a) of the Public Service
Employment Regulations, to select candidates for
the position of immigration counsellor. The Public
Service Commission appointed a selection board
that held interviews to assess the knowledge, abili
ties and "potential for effectiveness" of fifty-seven
candidates, of whom applicant was one. The board
decided that fifteen of the candidates were quali
fied for the position and placed their names on an
eligible list. Since applicant had failed on "abili-
ties", his name was not placed on the list. He
appealed under section 21 of the Public Service
Employment Act. His appeal was heard at the
same time as the appeals of six other unsuccessful
candidates. However, applicant was the only can
didate who failed on "abilities": the others had
failed on "knowledge". The Appeal Board found
that the selection board had not assessed the can
didates' knowledge properly, because it had failed
to test their knowledge of criminal law. For this
reason, and for this reason alone, the Board
allowed the appeals, including that of applicant.
However, the decision made no mention of the
grounds on which applicant's appeal was based,
namely that his abilities had not been assessed
properly. It discussed only the contentions put
forward by the other appellants regarding the way
in which their knowledge had been assessed.
Following this decision, the selection board
again interviewed the candidates, including appli
cant, to assess their knowledge of criminal law.
After combining the results of the second assess-
ment with those of the first, the board drew up a
second eligible list, on which applicant's name
obviously did not appear, because he had not failed
on knowledge but on abilities.
Applicant again appealed under section 21
against the proposed appointments, contending
that his abilities had not been properly assessed.
The Board that heard the second appeal decided to
dismiss it on the grounds that applicant's conten
tions had already been considered and found inval
id by the first Appeal Board. This is the decision
being appealed by applicant on the ground that it
deprives him of the right of appeal granted in
section 21.
The Commission could have decided to hold a
fresh competition following the decision of the first
Appeal Board. All the unsuccessful candidates in
the second competition would then have had the
right to appeal, and the problem raised here would
have been avoided. The problem stems from the
fact that rather than holding a fresh competition,
the Commission chose merely to remedy the defect
that was the basis of the first Appeal Board's
decision. I see nothing reprehensible in this proce
dure, because in my view the Chief Justice was
correct in saying in Brown v. Public Service Com
mission [1975] F.C. 345, at page 372, that after
an appeal under section 21 is allowed, the Com
mission is not always required to start the selection
process from the beginning, and that where possi
ble, it could simply remedy the defects found by
the Appeal Board. However, while this procedure
is acceptable, its result must not be to deprive an
unsuccessful candidate of the right to appeal
granted under section 21. In my opinion, this is
precisely the effect of the decision a quo. Contrary
to what is said in this decision, the first Appeal
Board did not disallow—either implicitly or other-
wise—applicant's contention that his abilities had
not been properly assessed. Moreover, it cannot be
said in the circumstances that applicant aban
doned the idea—either tacitly or otherwise—of
putting forward his contentions. For these reasons,
I think that the Appeal Board was wrong to dis
miss applicant's appeal without considering wheth
er his grounds for appeal were valid.
I would therefore allow the application and set
aside the decision of the Appeal Board, to which I
would refer back the case for a decision on appli
cant's appeal after it conducts the inquiry provided
for in section 21 of the Public Service Employ
ment Act.
JACKETT C.J. concurred.
LE DAIN J. concurred.
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